PLJ 2022 Lahore 642
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Constitution of Pakistan, 1973, Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 419/420--Pakistan Telecommunication (Re-organization) Act, (XVII of 1996), Ss. 2 & 4--Telecom Consumers Protection Regulations, 2009--Regulations 3(vi) & (vii)-- Subscriber Antecedents Verification Regulations, 2015--Regulation 12--Transfer of SIM--quashment of FIR--A complaint was received qua unilateral conversion of SIM, internal inquiry was conducted and conversion was converted to the ownership--To protect the consumer’s interest, an action was also taken against senior manager CSC and he was fined--Application filed against such conversion was attended by Wafaqi Mohtasib who after hearing the parties directed PTA to redress grievance of the petitioner--Complainant of FIR could have filed an application or an appeal u/S. 7 of the PTA, 1996, but it was not done--There is a complete and comprehensive mechanism given in PTA, 1996--Change of ownership of SIM is regulated under Rule 12 of Subscriber Antecedents Verification Regulations, 2015 which authorizes the operators to change the ownership of SIM--If any breach of such regulation is found, such breach is punishable u/s 31 of PTA, 1996, every offence specified in sub-section (1) shall punishable with imprisonment which may extend to two years--No court take cognizance of any offence under the act, except on a complaint in writing by an officer authorized by authority or the Board.
[Pp. 646, 647 & 648] A, B, C & E
2016 SCMR 447; 2005 SCMR 306; 2011 SCMR 1937;
PLD 2001 Karachi 112; 1993 PCrLJ 1448; 2011 YLR 2280;
PLD 2015 Lahore 204 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 5--Registration of FIR--Trial of offences against other laws--If the procedure is not given in any special law, then one prescribed under CrPC, 1898 shall be followed--According to the second schedule of CrPC, if an offence is punishable with imprisonment for one year and upwards but less than three years, the offence shall be non-cognizable--There is a difference between registration of FIR and taking cognizance, yet FIR could only be registered in cognizable offence--On this score, FIR for an offence under PTA can not be registered--Very registration of FIR was false owing to mistake of law and the court in its constitutional jurisdiction can quash the same. [P. 648] D
2016 SCMR 447; 2005 SCMR 306 ref.
Mr. Amir Sikandar Ranjha, Advocate for Petitioner.
Mr. Amjad Ali Ansari, Assistant Advocate General for State.
Mr. Imdad Ali Nekokara, Advocate for Respondent No. 3.
Date of hearing: 24.3.2022.
PLJ 2022 Lahore 642
Present: Muhammad Amjad Rafiq, J.
OMER NAZEER--Petitioner
versus
STATE etc.--Respondents
W.P. No. 7952-Q of 2022, heard on 24.3.2022.
Judgment
Through this Constitutional Petition, the petitioner being Regional Manager based at Regional Office Lahore of the CMPak Limited (the “CMPak” or “Zong”), assailed the vires of FIR No. 432 dated 27.11.2021 registered under sections 419 & 420, PPC at Police Station Kaleki Mandi, Hafizabad on the ground that subject matter of FIR requires investigation and adjudication by Pakistan Telecommunication Authority (hereinafter called as PTA) only and in such like cases FIR is barred under such law, thus, prayed that FIR is to be quashed as false owing to mistake of law.
2. Briefly the facts of the case are that one Noor Abbas was allotted a golden number 0311-1111311 by Zong Company in year 2013 who sold out said number to one Mst. Irshad Bibi on 24.02.2015. Mst. Irshad Bibi further sold the same to one Idrees Noor on 25.01.2016. Shamraiz son of Noor Abbas, the first owner, on the death of Noor Abbas got blocked the Subscriber Identity Module (hereinafter called as SIM) and succeeded to transfer it in his name from Gujranwala Region of Zong Company. When it came to the notice through application of last owner namely Idrees Noor, Zong Company started inquiring the matter. The matter was under inquiry when an application was filed before the PTA. PTA issued a show cause notice to Zong Company and the SIM was reverted in the name of Idrees Noor. Thereafter, Shamraiz son of Noor Abbas filed an application before Wafaqi Mohtasib which was contested and the learned Wafaqi Mohtasib vide order dated 22.06.2021 referred the matter to the Chairman PTA with the recommendations to finalize the matter and to redress the grievance of the complainant (Shamraiz) as per Rules; upon which by virtue of order dated 24.12.2021 PTA passed the following order:
"It is to inform that since CMPak Limited (the "licensee") has taken appropriate action against the concerned employees and has reverted the ownership of the MSISDN in the name of Idrees Noor. In addition, the licensee has also issued advisory to all the franchisees, as well as CSCs regarding compliance of Rules, Regulations, SOPs and directives of PTA. Thus, in such circumstances, SCN is hereby disposed with the warning to the licensee not to repeat the same in future."
but in the meantime said Shamraiz succeeded to get lodged FIR No. 432/21 impugned herein, alleging fraud and misrepresentation in transfer of SIM and the petitioner alongwith others were nominated as accused in said FIR.
3. Learned counsel for the petitioner has contended that
the local police has no jurisdiction to register the FIR as the
whole mechanism relating to complaint in such like matters is regulated under The Pakistan Telecommunication (Re-organization) Act, 1996. He while referring to the definition clause of said Act has referred Section 2(a), 2(j) & 2(q) defining "Authority" "Licencee" & "Regulation" stated that Section 4 of Act ibid envisaged Functions of Authority and quoted Section 4 (a), (c) & (f). Clause (f) particularly states as under:-
"investigate and adjudicate on complaints and other claims made against licensees arising out of alleged contraventions of the provisions of this Act, the rules made and licences issued thereunder and taken action accordingly."
Further states that the regulations which were framed under the said Act are titled as "Telecom Consumers Protection Regulations, 2009". Such regulations contain the definition of "Consumer" and "Operator" which are Regulation 3 (vi) & (vii). He highlights Regulation 11 (Nature of Complaints) to throw light on the sort of complaints to be dealt under such regulation which are as under:
i. Misuse of Service
ii. Quality of Service
iii. Illegal Practices
iv. Poor Services
v. Provision of Service
vi. Misleading Statements
vii. Non-Provision of Service
viii. Mobile Number Probability related complaints
Further highlights the Complaint Handling Mechanism which is reflected in Regulation 12 to 15 and finally states that if the grievances of a consumer could not be redressed by licensee concerned then the PTA is final Authority to investigate and adjudicate upon the matter. He quoted Section 31 (5) which says that cognizance of the offence shall only be taken on a complaint made by PTA which is reproduced as under:
"No Court shall take cognizance of any offence punishable under this Act except on a complaint in writing by an officer authorized by the Authority or the Board."
4. Learned counsel for the petitioner adds that local police has no jurisdiction, if somebody is affected from the decision of PTA he can file an appeal before the High Court as mentioned in Section 7 of The Pakistan Telecommunication (Re-organization) Act, 1996 and by virtue of Section 58 of the said Act such law has been given an overriding effect. So, as a corollary the complainant of FIR at the most could file an appeal before this Court; registration of FIR was barred. He has placed reliance on judgments reported as “Director General, FIA and others vs Kamran Iqbal and others” (2016 SCMR 447), “Rana Shahid Ahmad Khan vs. Tanveer Ahmed and others” (2011 SCMR 1937), “Muhammad Akram vs. The State” (PLD 2001 Karachi 112), “Haji Tooti Bashar vs. The State” (1993 P.Cr.L.J. 1448), “Liaqat Islam vs. The State” (2011 YLR 2280), “Pakistan Mobile Communication LTD. Vs. Judge District Consumer Court, Gujranwala and 3 others” (PLD 2015 Lahore 204) and also relied upon order dated 18.01.2022 passed in W.P. No. 8852 of 202 by this Court.
5. On the other hand, learned counsel for the complainant states that application filed by the complainant has been decided by PTA one sidedly and he has not been given proper opportunity, however, he could not controvert the legal position as stated by the learned counsel for the petitioner.
6. Heard. Record perused.
“5. Trial of Offences under Penal Code-(1) All offences under the Pakistan Penal Code shall be investigated, inquired into tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) Trial of offences against other laws.--All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offence.”
(K.Q.B.) Petition allowed
0 Comments